San Francisco and San José Pass Emergency Paid Leave Ordinances

April 15, 2020 – AlertsBy Jeffrey D. Polsky and Liku T. Madoshi

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San Francisco and San José are the latest California cities, as of April 7, 2020, to pass ordinances mandating that employers provide emergency paid sick leave to their employees. Both ordinances aim to protect the local workforce by filling in the gaps left by the federal Families First Coronavirus Response Act (FFCRA) enacted in March.

The FFCRA currently requires private employers and government agencies with fewer than 500 employees to provide two weeks of additional paid sick leave due to COVID-19. As a result, private employers with larger workforces are exempt from guaranteeing additional paid leave to their employees. For more information on the FFCRA, see our Coronavirus Resources Page and FFCRA Webinar.

San Francisco and San José’s emergency ordinances do not amend the FFCRA, instead they supplement it by requiring exempt employers to comply with provisions similar to the FFCRA. Both ordinances cover gig workers and independent contractors who work for a business covered by the ordinance.

San Francisco

The purpose of the San Francisco Public Health Emergency Leave Ordinance (PHELO) is to require private employers with 500 or more employees to provide leave during the public health emergency related to COVID-19. The PHELO helps alleviate the financial concerns of employees unable to work because of COVID-19. The city amended the PHELO on April 14. The changes are outlined in this alert.

Here are further details of the ordinance as it was originally enacted:

Applies to employers with 500 or more employees

Employees must have worked 56 hours in the City or County of San Francisco in the past year on a full-time, part-time, temporary, contractor or other basis

Expires 61 days after enactment (unless the PHELO is reenacted) or when the public health emergency ends, whichever is sooner

Full-time employees are entitled to up to 80 hours of emergency paid leave. Part-time employees are entitled to the number of hours normally worked in a two-week period based on the average hours worked in the last six months

If an employer has already provided employees with additional paid leave related to COVID-19 before enactment of the PHELO, those hours will be counted toward meeting the PHELO’s 80-hour requirement

Emergency leave must be granted after a written or oral request and does not require a doctor’s note or other documentation. Paid leave can be used if an employee:

Is subject to an individual or general federal, state or local quarantine or isolation order related to COVID-19, including the Shelter-in-Place Executive Order issued by California Gov. Gavin Newsom

Has been advised by a health care provider to self-quarantine

Is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis

Is caring for a family member who is subject to an order as described above, has been advised to self-quarantine or is experiencing symptoms associated to COVID-19

Is caring for a family member whose school or care provider is closed or unavailable due to COVID-19OR

Is experiencing other substantially similar conditions specified by the Local Health Officer.

The city’s Office of Labor Standards Enforcement will post a notice within seven days of the enactment of the PHELO. Afterward, employers must provide employees with notice of the ordinance within three days in a manner effective to reach all employees, such as posting the notice in the workplace, sending the notice in an electronic communication, or posting the notice on the employer’s internet or app-based platform. Additionally, the notice must outline the amount of leave available to employees and be provided in any language spoken by at least 5% of the workforce.

San José

San José’s COVID-19 Paid Sick Leave Ordinance (PSLO) is also intended to extend protections to employees who were excluded by the FFCRA. The PSLO differs from San Francisco’s PHELO in several aspects. Details of the PSLO include:

It applies to any employer not required by the FFCRA, in whole or in part, to provide paid sick leave benefits. This includes private employers with 500 or more employees.

Employees must have worked two hours within the boundaries of the City of San José and must leave their residences to perform essential work (as defined in the order issued by the Santa Clara County Public Health Officer’s Order dated March 16, 2020). Accordingly, the PSLO does not apply to employees who are capable of working from home.

The order expires on December 31, 2020.

Full-time employees are entitled to up to 80 hours of paid sick leave. Part-time employees are entitled to paid sick leave equal to the number of hours they work on average in a two-week period. A part-time employee’s paid sick leave will be calculated based on the average number of hours they worked per day during the six months preceding the enactment of the PSLO. If an employee has worked less than six months, their sick leave will be calculated based on the average hours they were expected to work at the time of hiring;

Employees on emergency leave are entitled to their rate of pay up to $511 per day, but not to exceed an aggregate of $5,110. Employees using emergency leave to care for another person are only entitled to two-thirds of their rate of pay up to $200 per day, but not to exceed an aggregate of $2,000.
An employee can use paid sick leave if

They are subject to quarantine or isolation by federal, state or local order due to COVID-19, or are caring for someone who is quarantined or isolated due to COVID-19.

They are advised by a healthcare provider to self-quarantine due to COVID-19 or are caring for someone who was similarly advised.

They are experiencing symptoms associated with COVID-19 and are seeking a medical diagnosis.OR

They are caring for a minor because school or day care is closed due to COVID-19.

Employers who already provide personal leave to employees in an amount “at least equivalent” to that of the PSLO are exempt from the PSLO. If an employer provides some paid personal leave which is less than that required by the PSLO, they are required to comply with the PSLO to the extent there is no deficiency.

Santa Clara’s March 16, 2020 order does not define “essential work” but provides a list of essential businesses. More importantly, this order has been superseded by the order dated March 31, 2020 which contains a slightly different list of essential businesses and suggests essential work to be work of essential businesses done outside of the home: “Essential Businesses may only assign those employees who cannot perform their job duties from home to work outside the home.”

What to Expect Next?

Once enacted, the paid sick leave provided by San Francisco’s PHELO and San José’s PSLO will be available for immediate use by covered employees.

San Francisco and San José follow in the footsteps of Los Angeles and Emeryville in an effort to provide additional assistance to workers during this unprecedented time. We expect other California cities to join the growing list of cities requiring emergency paid sick leave to protect their workers from the gaps in the FFCRA.

Fox Rothschild will continue to provide updates regarding recent legislation and events surrounding COVID-19 and its impact on businesses. For additional information, visit our Coronavirus Resources Page and subscribe for automated updates, or contact any of the labor and employment attorneys in our San Francisco office.